Dowdy v. Fieldcrest Mills, Inc. , 59 N.C. App. 696 ( 1982 )

ARNOLD, Judge.

The sole issue on this appeal is whether plaintiff filed his claim within the statute of limitations. G.S. 97-58(c) states in part:

The right to compensation for occupational disease shall be barred unless a claim be filed with the Industrial Commission within two years after death, disability, or disablement as the case may be.

Under G.S. 97-55, disability is defined as “the state of being incapacitated as the term is used in defining ‘disablement’ in G.S. 97-54.” G.S. 97-54 defines disablement in cases like this one to be “equivalent to ‘disability’ as defined in G.S. 97-2(9).” G.S. 97-2(9) then defines disability as “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.” In this context, disability refers “not to physical infirmity but to a diminished capacity to earn money.” Wood v. Stevens & Co., 297 N.C. 636, 651, 256 S.E. 2d 692, 701 (1979) and cases cited therein.

In Taylor v. Stevens & Co., 300 N.C. 94, 265 S.E. 2d 144 (1980), the court dealt with this issue and concluded that

Time begins running when an employee has suffered: (1) injury from an occupational disease which (2) renders the employee incapable of earning the wages the employee was receiving at the time of the incapacity by injury.

300 N.C. at 98-99, 265 S.E. 2d at 147. We find that plaintiff was disabled within the meaning of Taylor and the Workers’ Compensation Act when he was forced to retire in 1976. This conclusion is in agreement with finding of fact fourteen in the opinion and award that is the subject of this appeal.

Defendant argues, however, that the claim was not timely because Taylor further states “with reference to occupational diseases the time within which an employee must give notice or file claim begins to run when the employee is first informed by competent medical authority of the nature and work-related, cause of the disease.” 300 N.C. at 102, 265 S.E. 2d at 149. We agree with this statement of the law but believe that it was meant only to apply to fact situations like Taylor.

In that case, the claimant quit working in 1963. She did not file a claim, however, until after being told by competent medical authority in 1975 of her disease and its work-related cause. The statement above from Taylor was the Court’s justification for deciding that plaintiffs claim was timely even though there was a twelve-year lapse between the date she stopped work and the time she received notice of her disease.

In the case sub judice, the plaintiff was not disabled until after notification of his disease and its cause, unlike Taylor where plaintiffs disability occurred twelve years before such notification. The rationale of Taylor was that

our Legislature never intended that the statutory scheme of G.S. 97-58 would be construed to render time for notice and claim absurd. It is equally clear that our Legislature never intended that a claimant for workers’ compensation benefits would have to make a correct medical diagnosis of his own condition prior to notification by other medical authority of his disease in order to timely make his claim.

300 N.C. at 102, 265 S.E. 2d at 149 (emphasis added). Since the decision in Taylor can be distinguished on its facts, we hold that plaintiffs claim was filed within two years following disability and thus not barred by the statute of limitations.

Moreover, it is inconceivable that our statutes and case law would dictate the harsh result of denying an employee’s claim for occupational disease when disability is due to his employment, as in the case at bar, and his employer allows him to continue working for over two years after learning of the employee’s work-related health problems. The opinion and award of the Industrial Commission is

Affirmed.

Judges Hill and Johnson concur.